The diplomatic row between India and the United States over the arrest and prosecution of Devyani Khobragade, the Indian deputy consul-general in New York, for visa fraud and violation of US employment laws, continues (see my previous post) but new facts are emerging which may affect a determination of whether the US acted lawfully in arresting Ms Khobragade. India has taken further retaliatory measures against the US by withdrawing some of the privileges enjoyed by US diplomats and their families in the India. It is also investigating possible tax violations by US officials and has issued new identity cards to US consular officials in which make it clear to those officials (and to the police) that those consular officials may be arrested for serious offences (see recent New York Times, Reuters and BBC reports). With regard to Ms Khobragade herself, new questions have emerged with regard to the immunity that she may be entitled to. As noted in my previous post, India has, since her arrest, moved her from its consulate in New York to the Indian Mission to the UN, apparently, in an attempt to obtain full diplomatic immunity for her. It has now been asserted that even at the time of the arrest, she was temporarily assigned to the Indian Mission to the UN to assist with work in connection with the General Assembly session (see Reuters report). This may well change the picture as to whether Ms Khobragade was actually immune from arrest at the time.

In my previous post, I discussed the legality of the deputy consul-general’s arrest on the basis that she was only entitled to consular immunity. As noted in that post, consular officials are only entitled to functional immunity from prosecution, i.e immunity in respect of acts performed in the exercise of her consular functions, and may be arrested for grave crimes (pursuant to a decision of a competent judicial authority). However, the position is different with regard to representatives of states to the UN. If Ms Khobragade was already a part of the Indian Mission to the UN when arrested, or if she does become a part of the Indian Mission then the position with regard to the arrest, and with regard to the prosecution might be different from what was first thought.

Let me begin by considering the legality of the arrest of Ms Khobragade in the light of the claim that she was already a member of India’s mission to the UN at the time of the arrest. Reuters report that

“[s]he was temporarily moved to India’s U.N. mission in August to help with the workload ahead of the General Assembly session and a visit by the prime minister. A copy of her accreditation, made available to Reuters, lists her as an adviser for a period from August 26 until December 31.”

If this is correct then Ms Khobragade might well have been immune from arrest at the time when she was arrested. The reason for this is that Section 11(a) of the 1946 General Convention on Privileges and Immunities on the United Nations provides that “Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions . . .”, enjoy “Immunity from personal arrest or detention”. That provision also provides representatives with immunity from legal process but only with respect to acts done (or words spoken or written) in their capacity as representatives. As I noted in my previous post, this latter part of the provision means that representatives are only entitled to immunity from suits or prosecutions to the same extent as consular officials (i.e they are only entitled to functional immunity). However, the provision with respect to inviolability (immunity from arrest and detention) is different. The inviolability of consular officials (under Art. 41 of the Vienna Convention on Consular Relations) contains the exceptions for grave crimes. However, the inviolability of representatives to the UN is absolute. There is no exception for arrest for serious crimes.

The Temporal Scope of Immunity of Representatives to the UN

Although the inviolability of representatives to the UN is absolute, Section 11(a) of the 1946 General Convention on Privileges and Immunities on the United Nations provides for immunity and inviolability only “while [representatives are] exercising their functions . . .”. Does this mean that representatives are immune from arrest only at a time when they are actually engaging in acts within the scope of their functions (eg while in the office or while attending a meeting at the UN?) A narrow interpretation of those words would mean that the Ms Khobragade (assuming she was already an Indian representative to the UN when arrested) could have been arrested when dropping off her daughter at school but not when she had reached the office. I would suggest that a narrow interpretation of Section 11(a) would be inappropriate and inconsistent with the structure of the provision as a whole. Such an interpretation of the words “while exercising their functions” is inappropriate because it would make the rights provided for in Section 11 illusory. It would mean that though the representative cannot be arrested while in the office she could be arrested when at home asleep. This would mean that a state which wanted to deny immunity and inviolability would always be able to do so. The narrow interpretation would also be inconsistent with the context of Art. 11 because it would render redundant the restriction of the immunity from legal process to words or acts of representatives spoken, written or done in their capacity as representatives. If immunity only exists for representatives “while exercising their functions” and this means while performing acts in connection with their functions, why would there need to be a restriction of immunity from legal process to acts in their capacity as representatives? On the narrow view, that restriction of immunity would already be present. These considerations suggest the immunity from personal arrest and detention should apply not just when the representative is actually performing an act in connection with her functions but throughout the period in which she is in the host state for the purpose of exercising those functions. It is this interpretation of Article 11 that has been adopted by the UN and also by US courts [see 1976 UN Juridical Yearbook 224, 228; Tachiona v. Mugabe, 386 F3d 205 (2nd Cir. US, 2004)]

Is there a Need for US Consent for Transfer to the Indian Mission to the US

The foregoing analysis suggest that it was unlawful to arrest Ms Khobragade, if she was already a representative of India to the UN. It should be noted that though it is said that she was an adviser to the UN mission, Section 16 of the 1946 UN General Convention on Privileges and Immunities states that

“the expression “representatives” shall be deemed to include all delegates, deputy delegates, advisers, technical experts and secretaries of delegations.”

The key question is whether Ms Khobragade was indeed a member of the Indian mission to the UN when arrested. It may be asked whether she could have been a member without the US’ consent [I do not know whether such agreement existed or not]. In Reuters report, it is stated that:

“According to the U.N. Manual of Protocol website (www.un.int/protocol/3_6.html), U.N. accreditation alone does not appear to grant diplomatic immunity, it simply gives Khobragade access to U.N. headquarters in New York. . . The manual says a country’s U.N. ambassador must write to the U.N. secretary- general to request privileges and immunities for individual diplomats. The United Nations then submits this to the U.S. mission to the United Nations for approval.”

This statement is correct in outlining the procedure that is followed. However, it is not correct to suggest that there is no entitlement to immunity without US consent. In my previous post I noted that resident representatives of states to the UN are entitled to full diplomatic immunity under Section 15 of the UN/US Headquarters Agreement. However, entitlement to such immunity is dependent on trilateral agreement between the US, the UN and the state concerned. As noted in my previous post, there is a question as to whether this agreement needs to be given in each case or whether agreement as to categories of staff that fall within the category of those entitled to diplomatic immunity suffices. [See the discussion in the UN Repertory of Practice, Supplement No. 3, Vol 4. (paras. 68 – 69)]. The resolution to this question will affect whether Ms Khobragade will have full diplomatic immunity now that India has transferred to the India Mission to the UN for more than a temporary period. That full diplomatic immunity will prevent her from being prosecuted for as long as she remains a resident representative of India. As far as I know, the US has not yet consented to her being granted full diplomatic immunity as a part of the Indian mission. .

The question discussed above is not whether Ms Khobragade was entitled to full diplomatic immunity, including immunity from prosecution, but rather whether she is entitled to inviolability and immunity from arrest. The important point to note is that this latter immunity is not just derived from the UN/US Headquarters Agreement but also from the UN General Convention on Privileges and Immunities. The former accords full diplomatic immunity but requires trilateral agreement, the latter accords more limited immunities but does not require agreement between the US, the UN and the state concerned.

On the question of US consent to Ms Khobragade being transferred to the Indian Mission to the UN, first in August on a temporary basis and then in December, it is important to separate two issues. The first is whether there is need for agreement before a person can be admitted as part of the delegation or mission of a UN member. The second is whether such person, having been included in the delegation, is entitled to [full] diplomatic privileges and immunities under the relevant agreement or legislation. With regard to the first question, it is important to note that representatives of member States are not accredited to the host State. Therefore, unlike the case of diplomatic envoys there is no requirement for prior approval (agrément) of the host State (or of the Organization) for the appointment of the head of a UN member’s mission to the UN. Likewise, the concept of persona non grata (as provided for in Article 9 of the Vienna Convention on Diplomatic Relations) does not exist with regard to representatives of member States and a host State is therefore not entitled to consider them unacceptable prior to their arrival nor, as a general matter to request their departure (except as provided for in Section 13 of the UN/US Headquarters Agreement and in the US reservation to the UN General Convention). This means that the UN member state concerned is free to designate such representatives as it wishes without having to obtain the consent of the US to that designation. However, the fact that there is no general requirement for host State to consent to the inclusion of a person as member of a permanent mission does not necessarily exhaust the question whether host state consent is required for the granting of certain privileges and immunities to the representative. The fact that a person is a member of a permanent mission generates an entitlement under the Charter and the UN General Convention to functional immunities and to inviolability. This is the minimum that all representatives are entitled to.

As noted above and in my previous post, whether Ms Khobragade is entitled to broader diplomatic privileges and immunities under the US/UN Headquarters which will prevent her from being prosecuted will depend on the view that one takes of the requirement of trilateral agreement between the US, the UN and the state concerned. My tentative view (i.e I may change my mind on this one!) on whether the US consent can be on a case by case basis is that it may be case by case and that withholding of US consent can deny full diplomatic immunity.

3 Responses

Thank you for your lucid and thoughtful analysis. I agree with you that Khobargade had entitlement to immunity from arrest from Aug 26th 2013, based on Section 11(a) of General Convention. However this entitlement, in and of itself, does not make her arrest illegal.

Let me explain with an analogy. I have a coupon that entitles me to a 25% discount on purchases from a store. Yesterday I went to the store and made purchases paying the full listed price. Did the store act illegally? It depends on whether I submitted the coupon to the store or not. Mere possession of coupon is not sufficient to avail the discount – the coupon has to be presented to the store.

Similarly, per UN circular of Nov 2012 (see link below), for the UN to forward relevant papers to the US Mission, the permanent representative of the Indian Mission to the UN is required to make a written request for immunity.

It appears that the Indian Mission did not make any such written request after Aug 26th 2013. If it had made a written request, the Indian officials have all the incentives to have asserted that a written request was made. Their silence is therefore revealing.

The news report in the link below suggests that no information about her new role from Aug 26th 2013 was communicated to the US authorities before her arrest.

It appears that the diplomat in question should have upgraded her Identity card from yellow (Consular) to red (Diplomatic) but was unaware that her accreditation to the U.N had gone through.
Indian umbrage is based on the refusal of the U.S State Dept. to provide certification of immunity which would have the effect of stopping legal proceedings against the Indian official and, by extension, becoming the basis of the apology the Indians felt they were owed. No doubt, the Indians felt the State Dept. ought to supply the certification by reason of reciprocity.
However, as things stand, the State Dept. is not obliged to provide such certification- and only certification can completely stop legal proceedings in a case of this sort.
A separate issue has to do with the diplomat’s substantive and procedural due process rights under the Fifth Amendment. Following the judgement in U.S vs. Al Hamdi, it appears Judges have some leeway. They may take the view that notwithstanding State Dept refusal to certify immunity, nevertheless, Khobragarde was entitled to rely upon it.
This is an interesting question and has a bearing on other ongoing cases.

One curious feature has been that while there were differing perceptions on the Devyani Khobragade issue, American [and British!] media did not go into one major reason why the Maid Richard’s circumstances were seen differently in India. Throughout the period since mid-December 2013 to January 2014 US media did not report [while the Indian media did] that the Maid Richard’s family had a prior link with the US Embassy in New Delhi. This is one reason why the Maid Richard was not seen in India as being on par with the helpless and the exploited. Richard’s in-laws worked for US diplomat Geoffrey Pyatt who was posted in India as Minister Counselor from 2002 to 2007. They were then employed by Uzra Zeya, Political Counselor at the US embassy (2009-2011). Then with US diplomats Timothy and Joyce Haley. Finally, it appears they were employed by US diplomats Wayne and Alicia May.

To make assurance doubly sure, I asked scribes Jason Burke, Pen Macrae, Geoff Dyer, Andrew Buncombe, Amy Kazmin, Nater Raymond, Karen DeYoung, Ellen Barry, Dean Nelson, Dan Roberts and Alistair Scrutton if the Maid Richard’s family’s prior link with the US embassy in New Delhi was ever reported in US / UK. These are the ladies and gentlemen who appear to have done much of the news coverage on the subject. So far there is no reply from them. Would reporting this have been beyond the call of duty? Or is the non-reporting of it a serious professional lapse, to put it no higher. I rather think it is the latter.

Regarding the arrest of a Consular official, the Vienna Convention requires that this may be done [in the case of a grave offence] “pursuant to a decision by the competent judicial authority”?
The question is whether even a judicial warrant of arrest would be such a “decision”.
The focus in much of the discussion has been on the meaning of “grave offence”.
I would argue yet another aspect of the question : that the arrest even of a Consular Official [without full diplomatic Immunity] had to be the subject of a pre-arrest hearing leading to a pre-arrest judicial decision on liability of arrest.
Before such a pre-arrest hearing, all that the “competent judicial authority” could have done is to issue a summons and pass an order preventing the Consular official from leaving the US pending such a pre-arrest hearing.
This is independent of the issue of full diplomatic immunities arising from the UN assignments of the official concerned [both the prior temporary one and the subsequent permanent one]
Also, on the substance of the case,it seems that non-monetary benefits like housing and medical benefits given to the Maid Richard were not adequately recognised.
It is a positive development now that the two countries are talking constructively.

Anil Nauriya,
Advocate, Supreme Court of India
Jan 31, 2014

Dapo Akande

Dapo Akande is one of the editors of EJIL:Talk!. He is Professor of Public International Law at the University of Oxford and Yamani Fellow of St Peter's College, Oxford. He is Co-Director of the Oxford Institute for Ethics, Law & Armed Conflict, and also of the Oxford Martin Programme on Human Rights for Future Generations. Dapo is a member of the Editorial Boards of the European Journal of International Law and the American Journal of International Law.